Written By Erika L. Simonson
Since the February shooting in Parkland, Florida, several companies have ended their relationships with the National Rifle Association (NRA). One corporation, Delta Air Lines, responded to the tragedy with an attempt to “remain neutral” in the national gun debate by removing its discount for NRA members. However, instead of removing itself from the gun debate, Delta found its company at the center of the conversation.
Seventeen students and adults were killed on February 14, 2018, when a lone gunman opened fire in Marjory Stoneman Douglas High School with an AR-15 assault rifle. According to The Guardian, this was the eighth shooting of the year in the United States to have resulted in a death or injury.
The nation’s response to Parkland was swift, led in part by the activism of some students present in the high school during the attack. Companies like Walmart, Kroger, L.L. Bean, and Dick’s Sporting Goods announced they would no longer sell firearms to anyone under 21 years of age. REI cut ties with Vista Outdoor, a company that manufactures guns and supports the NRA. MetLife, Hertz, Enterprise Holdings, and United Airlines ended discount programs for NRA members. Finally, Delta Air Lines also ended their NRA discount program in what they called an attempt to “remain neutral” in the national gun debate.
Action in Atlanta
While these companies’ actions were met with both applause and criticism nationwide, Delta became the center of attention for Georgia legislators. Within days of Delta’s statement about removing its NRA member discount and taking a neutral stance, the Georgia legislature struck down a jet fuel tax exemption that would have been lucrative for Delta, the state’s largest private employer.
Georgia began offering this tax break to a financially-struggling Delta after the recession in 2008. The state stopped offering that tax cut in 2015, but it was on track to reinstate it again this year. Days after Delta’s statement, however, the proposed tax break was killed in the Georgia Senate, following a push by Lieutenant Governor Casey Cagle. Georgia Governor Nathan Deal is expected to sign the tax bill, sans jet fuel exemption. This missed tax exemption opportunity for Delta will add up to nearly $50 million a year.
Delta and First Amendment Rights
The first free speech case involving a business was decided in 1952 in Joseph Burstyn v. Wilson, in which the Supreme Court of the United Stated (SCOTUS) struck down a New York law that forbid the commercial showing of any film deemed “sacrilegious.” In 1976, in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, SCOTUS created the “commercial speech doctrine,” which gave courts the power to strike down laws regulating the market and advertising of products with no artistic, political, or expressive component. More recently, in 2010, SCOTUS held in Citizen’s United v. Federal Election Commission that corporations have the same free speech rights as individuals under the First Amendment. This means that SCOTUS’ previous decisions on freedom of speech would also protect the right of corporations – including Delta – to engage in political speech, symbolic speech, and to be free from compelled speech. In consequence, several media outlets have accused Georgia of violating Delta’s First Amendment rights.
Media outlets often rely on the 2011 decision Sorrell v. IMS Health for support of a First Amendment violation. In that case, SCOTUS struck down a Vermont statute, the Prescription Confidentiality Act, that prohibited the sale or use of a doctor’s prescribing habits for marketing purposes. The Act was passed in response to several pharmaceutical companies using individual doctors’ prescribing habits without the doctors’ consent. SCOTUS held that content-based or speaker-based restrictions on non-misleading commercial speech regarding lawful goods or services should be subjected to heightened judicial scrutiny. This heightened level of scrutiny requires the government to demonstrate with greater certainty that its purposes could not be achieved by means that do not entail speech restrictions.
Therefore, while on its face, Georgia’s “retaliation” against Delta may seem like a violation of Delta’s free speech rights, there is uncertainty as to whether any case would get very far in the courts. This is because this case is distinct from Sorrell, as Georgia did not pass a law that infringed upon Delta’s free speech, rather, Georgia declined to pass a law at all. Further, the Georgia legislators provided seemingly sufficient non-speech reasons for the tax bill.
Atlanta is Delta’s largest hub, at three times the size of the next two busiest hubs. Delta is unlikely to move its corporate headquarters, as it would be costly to separate the headquarters and Delta executives from the busiest hub. Georgia is also inclined to keep ties with the airline, since the Atlanta airport – Hartfield-Jackson – remains the busiest airport in the world. Moreover, Delta employs more than 30,000 people in the state and contributes more than $43 billion to the state’s economy each year.
In consequence, this missed opportunity of a $50-million savings may just be a ‘drop in the bucket’ for Delta, who reported more than $41 billion in revenue last year. So, despite the loss of this exemption, it is not likely we’ll see Delta break ties with Georgia anytime soon. It remains to be seen whether a lawsuit, or hardline conversation, will be born of this controversy.
Alana Wise, Georgia Lawmakers Kill Proposed Tax Break in Dig at Delta Over NRA Fight, Reuters (Mar. 1, 2018), https://www.reuters.com/article/us-usa-guns-delta-air-tax/georgia-lawmakers-kill-proposed-tax-break-in-dig-at-delta-over-nra-fight-idUSKCN1GD6M7.
Citizens United v. Federal Trade Commission, 558 U.S. 310 (2010).
Danielle Weiner-Bronner, Why Delta and Atlanta Need Each Other, CNN (Mar. 1, 2018), http://money.cnn.com/2018/03/01/news/companies/delta-atlanta-tax-break/index.html.
Jason Hanna, Faith Karimi and Emanuella Grinberg, Gunman Confessed to Florida High School Shooting, Police Say, CNN (Feb. 15, 2018), https://www.cnn.com/2018/02/15/us/florida-high-school-shooting/index.html.
Joseph Burnstyn, Inc., v. Wilson, 343 U.S. 495 (1952).
Julia Horowitz and Jackie Wattles, These Companies are Distancing Themselves From the Gun Industry, CNN (Mar 3, 2018), http://money.cnn.com/2018/03/03/news/companies/companies-cutting-ties-nra-gun-lobby/index.html.
Julie Creswell and Michael Corkey, Walmart and Dick’s Raise Minimum Age for Gun Buyers to 21, N.Y. Times (Feb. 28, 2018), https://www.nytimes.com/2018/02/28/business/walmart-and-dicks-major-gun-retailers-will-tighten-rules-on-guns-they-sell.html.
Lois Beckett, How Many U.S. School Shootings Have There Been in 2018 So Far?, Gaurdian (Feb. 15, 2018), https://www.theguardian.com/world/2018/feb/14/school-shootings-in-america-2018-how-many-so-far.
Meagan Flynn, Boycott: REI, Mountain Equipment Co-Op Stop Selling Major Outdoor Brand with NRA Ties, Wash. Post (Mar. 2, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/03/02/gun-boycott-rei-mountain-equipment-co-op-stop-selling-major-outdoor-brand-due-to-its-weapons-sales-nra-ties/?utm_term=.2c577a8a4071.
Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011).
Tiffany Hsu, ‘Our Values Are Not For Sale,’ Says Delta C.E.O. as Airline Considers Ending Divisive Discounts, N.Y. Times (Mar. 2, 2018), https://www.nytimes.com/2018/03/02/business/delta-nra-discount.html.
Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
Photo courtesy of Small Town Rules.